921 N.W.2d 698
S.D.2018Background
- The Brant Lake Sanitary District built a new wastewater treatment pond (BLSD pond) that connected to existing Chester ponds; the Krsnaks own land ~675 feet from the new pond and operate a commercial garden on it.
- The Krsnaks previously challenged permitting and DENR approval of the pond in earlier suits; those challenges were dismissed or affirmed on appeal.
- After the BLSD pond began operation, the Krsnaks reported increased odors and laboratory tests showed elevated coliform levels in their well; they retained an appraiser who estimated an $82,800 diminution in property value.
- The Krsnaks sued the District asserting inverse condemnation, nuisance, and declaratory relief; the District moved for summary judgment on all claims.
- The circuit court granted summary judgment for the District, finding (1) the Krsnaks’ odor and proximity-based harms were not unique in kind compared to the public and (2) there was no admissible evidence linking the pond to well contamination.
- The Supreme Court of South Dakota affirmed, concluding plaintiffs failed to show a taking/damaging unique in kind or statutory violation required for nuisance and lacked causation evidence for well contamination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BLSD pond effects constitute inverse condemnation (taking/damaging) | Krsnak: proximity (675 ft) and increased odor uniquely injure them; pond caused coliform contamination of well and economic harm to Linda’s Gardens | District: odor and other effects are shared with neighbors; no evidence pond caused well contamination; Krier controlling | Held: No inverse condemnation — injury is not unique in kind and causation for well contamination not established |
| Whether BLSD pond is an unlawful nuisance | Krsnak: pond unreasonably annoys, harms health, and impedes business (loss of GAP eligibility) | District: sanitary districts act under statutory authority; acts done under statutory authority cannot be a nuisance; plaintiffs identify no statutory violation | Held: No nuisance — plaintiffs failed to show the District acted beyond statutory authority or that pond unlawfully contaminated well |
Key Cases Cited
- Hurley v. State, 143 N.W.2d 722 (S.D. 1966) (damage must be different in kind, not merely degree, to support a taking)
- Krier v. Dell Rapids Township, 709 N.W.2d 841 (S.D. 2006) (greater degree of harm shared with neighbors does not establish a taking)
- Rupert v. City of Rapid City, 827 N.W.2d 55 (S.D. 2013) (court decides whether a taking/damaging occurred as a question of law)
- Parsons v. City of Sioux Falls, 272 N.W. 288 (S.D. 1937) (physical intrusion of sewage can constitute a taking)
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (U.S. 1982) (any permanent physical governmental occupation is a taking)